Sad end to a crusade

July 28, 1995

The visitor's decision was that the candidate had simply failed to make the grade.

On June 30 1995 Mr Justice McPherson, sitting as a visitor to the Inns of Court, dismissed Cecilia Hulse's appeal. She had appealed against a decision of the Board of Examiners of the Council of Legal Education not to certify her as having completed the Bar vocational course. The decision marks a sad end to what the judge described as Mrs Hulse's "crusade" to become a member of the Bar.

Mrs Hulse has sought to generate publicity for her case, particularly about the award of costs against her. The CLE did not seek to recover all of its costs (which it would have been entitled to do) but only those which had been unreasonably or unnecessarily incurred. The visitor considered that the costs had been inflated to the extent of Pounds 15,000 by the way in which Mrs Hulse had pursued her appeal. He deprecated the barrack-room lawyer approach that he detected on the part of Mrs Hulse and other students who had petitioned the visitors.

The CLE is a charitable institution and obliged to protect its funds. It has been involved in considerable costs and diversion of resources, which could have been better employed in the training of students on the course, as a result of Mrs Hulse's petition. It is ultimately students attending the course who have to meet the CLE's unrecovered costs as part of their tuition fees. It is paradoxical that Mrs Hulse should quote with approval a passage from the judgment of the then vice chancellor in the case of Patel v Bradford University listing the advantages of the visitorial jurisdiction for academic institutions.

These included informality, privacy, lack of publicity, speed and cheapness. It will already be apparent from the decision to award costs against Mrs Hulse that the visitor considered that she was largely to blame for having incurred them in the first place. Her petition originally ran to 50 pages and amounted to root-and-branch attack on the whole assessment process for the BVC. Although clear warnings were given to her about the costs implications if she persisted in all her allegations it was only very shortly before the hearing was due to commence that the bulk of them were withdrawn. By then a great deal of work had already been carried out in preparing for a five-day hearing including the commissioning of expert evidence.

Indeed, the visitor would have made his decision more speedily had Mrs Hulse presented her petition within the normal time limits. In fact she was more than 18 months late in doing so. Moreover, the proceedings would have been in private had Mrs Hulse not requested that they be heard in public and that she be named in the judgment. Normally there would be no publicity at all for visitorial hearings but Mrs Hulse has sought to bring her case to the widest possible audience. Mrs Hulse was herself represented by highly experienced junior counsel at the hearing acting pro bono, had the backing of the Council for Academic Freedom and Academic Standards and was able to call an expert educational witness.

The decision in Mrs Hulse's case is in line with other recent decisions about how visitors should approach their task in educational cases. While in principle they have an unlimited jurisdiction, it is now clear that in exercising it they will not interfere with decisions based on the academic judgement of the board of examiners and will respect actions properly taken within the assessment process.

The visitors will, however, interfere if it can be shown that the CLE has acted in a way that could successfully be challenged on judicial reviews.

In Mrs Hulse's case, the visitor concluded that there was no unlawfulness, irrationality or injustice in the way in which Mrs Hulse had been treated by the Board of Examiners and the Review Board.

It was very unfortunate that Mrs Hulse failed her single resit assessment. But as the visitor pointed out, she simply failed to reach the required grade.

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